Possible changes ahead for NSW's coronial system following announcement of new Parliamentary inquiry

By Dr Ashley Tsacalos, Elizabeth Forbes, Lycia Hayes and Jacinta MacGinley
27 May 2021
The coronial system in NSW is now the subject of a Parliamentary Inquiry that will report by the end of December 2021, and of some broad reaching recommendations from a separate Parliamentary Inquiry.

The pivotal and often high-profile work of the NSW Coroners Court cannot be understated. The findings and recommendations have the potential to directly affect the lives of individuals, a variety of organisations, Government and the community as a whole. For example, many people will recall the critical work undertaken by former NSW State Coroner Barnes, and those assisting him, in relation to the Inquest into the deaths arising from the Lindt Café siege. The process of that Inquest, as well as the Findings and Recommendations resulting from the Inquest, have had a significant impact on the lives of many individuals and on the operations of Government at both the State and Commonwealth level.

That work, and its legislative framework, are now under scrutiny, with the Legislative Council of NSW agreeing on 5 May 2021 to a motion by the Hon. Adam Searle MLC to establish a Select Committee to inquire into, and report on, the coronial system in NSW.

The broad scope and background to the Coronial System Inquiry

The Terms of Reference for the Inquiry are broad. The Coronial System Inquiry will inquire into the law, practice and operation of the Coroners Court of NSW including the:

  • scope and limits of its jurisdiction;
  • adequacy of its resources;
  • timeliness of its decisions;
  • outcomes of recommendations; and
  • the Court's ability to respond to the needs of culturally and linguistically diverse and First Nations families and communities.

Importantly, the Coronial System Inquiry is also to consider whether changes to the coronial jurisdiction in NSW are necessary (taking into account other Australian and relevant overseas jurisdictions), and the most appropriate institutional arrangements for it.

The announcement of the Coronial System Inquiry comes 20 days after the NSW Parliamentary Select Committee Inquiry into "The High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody" (First Nations Inquiry) tabled its Report on 15 April 2021. One of the 39 Recommendations made by the First Nations Inquiry in its Report was for the establishment of a Select Committee inquire into the NSW coronial system (Recommendation 30).

The Hon Adam Searle MLC stated that, following the First Nations Inquiry: "it was clear that the coronial jurisdiction was in dire need of a comprehensive review, having not been reviewed since 1975". He added that the Inquiry would "undertake a root and branch review of the coronial jurisdiction" and that "a lack of funding and resourcing of the NSW Coroner's Court is significantly impacting on the timeliness of inquests, and causing undue stress on the families involved. It is extremely important that this is improved and that the coronial jurisdiction in New South Wales is functioning at a highly effective level and is modernised to meet the needs of our community".

The motion to establish the Coronial System Inquiry was passed on the first sitting of the Legislative Council after the tabling of the First Nations Inquiry Report. Mr Searle was the Chair of the First Nations Inquiry, initiated the motion for the Coronial System Inquiry in the Legislative Council, and is now the Chair of the Coronial System Inquiry. Given a comprehensive review of the coronial system was identified by the First Nations Inquiry as being warranted, it was recommended that the same Committee be "re-purposed to undertake an inquiry into the coronial system" - a recommendation that has been acted upon.

Recommendations regarding the Coronial System already made by the First Nations Inquiry

Although Recommendation 30 of the First Nations Inquiry requires that "a proper review of the coronial system be undertaken", the Report states that: "there are a number of changes that can be implemented in the meantime to specifically address the concerns raised by stakeholders". Accordingly, even though the Coronial System Inquiry has only just begun, the following significant recommendations have already been made in relation to the coronial system by the First Nations Inquiry:

  • "That the NSW Government allocate additional resources, including adequate funding and staffing, to ensure that the NSW Coroners Court can effectively undertake its role in investigating deaths in custody in a timely manner" (Recommendation 31);
  • "That the NSW Government amend the Coroners Act 2009 to ensure that the relevant government department and correctional centre respond in writing within six months of receiving a Coroner's report, the action being taken to implement the recommendations, or if no action is taken the reasons why, with this response tabled in the NSW Parliament" (Recommendation 32);
  • "That the NSW Government amend the Coroners Act 2009 to stipulate that the Coroner is required to examine whether there are systemic issues in relation to a death in custody, in particular for First Nations people, with the Coroner provided with the power to make recommendations for system wide improvements" (Recommendation 33); and
  • "That the NSW Government amend the Coroners Act 2009 to mandate Coroners to make findings on whether the implementation of any, some or all of the recommendations from the Royal Commission into Aboriginal Deaths in Custody report could have reduced the risk of death in all cases where a First Nations person has died in custody" (Recommendation 34).

Recommendations 33 and 34 focus on issues raised specifically in relation to First Nations People that were addressed by the First Nations Inquiry. However, Recommendations 31 and 32 are not so confined and are relevant to the entire coronial system generally. It will be interesting to see how the Coronial System Inquiry addresses Recommendations 31 to 34 of the First Nations Inquiry that are directly relevant to its own remit.

Next steps for the Coronial System Inquiry

The Coronial System Inquiry has called for public submissions to be made by interested stakeholders or members of the community by 27 June 2021. Once submissions close, public hearings will be held later in the year. The Committee can invite authors of submissions or other stakeholders to give evidence. It is anticipated that the Coronial System Inquiry may wish to hear from key stakeholders such as the NSW State Coroner, the Coroners Court, the NSW Attorney General, Local Court of NSW, NSW Police Force, NSW Ministry of Health, Department of Communities and Justice, Legal Aid NSW and the NSW Law Reform Commission.

The Coronial System Inquiry must report by the end of December 2021. There is much work to do in this time as it is the first independent review of the coronial system in 46 years. The last review completed was by the NSW Law Reform Commission in 1975.

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